Waivers of Inadmissibility: More about Unlawful Presence and the Three and Ten Year Bars.

Because of recent proposed federal changes to I-601 application waiver process (see my April 3, 2012 blog post below). My next series of articles will focus on unlawful presence and the 601 waiver eligibility. The I-601 application is used to waive several grounds of admissibility for qualified applicants; among them criminal offenses, fraud offenses, failure to attend an immigration hearing, outstanding removal order, and periods of unlawful presence (ULP). Since the recent proposed federal rules for provisional waiver apply only to unlawful presence, ULP will be the focus of this article.

Unlawful Presence
Unlawful presence (INA 212(a)(9)(B)(v)) can accumulate in two ways: first, by entering the United States without a proper visa, travel permit or other legal documentation. The USCIS refers to this as EWI, or “entered without inspection”. The second way to accumulate unlawful presence is to enter the United States legally, with some form of valid nonimmigrant visa or parole (such as a visitor’s visa, student visa, or temporary worker), and overstay the approved length of time permitted in the United States or otherwise violate the term of the nonimmigrant visa. Both types of ULP’s create a barrier to achieving legal residence status by triggering a three or ten year bar.

Three and Ten Year Bar
Pursuant to Sections 212(a)(9)(i) and 212(a)(9)(ii) of the Immigration and Nationality Act (INA) if a foreign national [meaning a citizen of another country] is in the United States without legal status for more than 6 months but less than 1 year, when he leaves the country he triggers a 3-year bar, meaning he cannot come back to the United States in any status for 3 years. When out of legal status for more than one year, the foreign national is subject to a 10-year bar. Both bars for unlawful presence are only triggered when leaving the United States.

If the unlawful presence is the result of an overstay, marriage to a United States citizen or otherwise qualifying as a immediate relative essentially “cures” the unlawful presence, since the beneficiary can adjust status to legal resident while remaining in the United States without having to leave to process his application abroad and thereby triggering the bar. However, under current policy, those foreign nationals who entered the United States illegally, or those who are beneficiaries of the family based preference system applications (non-immediate relatives) must return to their home country to process their immigrant visa’s through the U.S. Consulate abroad, thereby triggering the 3 or 10-year bar. Those who must leave the U.S. to Consular Process, even if they came to the United States with a legal visa, include the adult children and siblings of United States Citizens, and the spouses and children of legal permanent residents.

In my next blog, I will discuss the I-601 Waiver process and the requirements for a successful waiver. In the meantime, contact the attorneys at Kalita Law Group P.C. if you have questions about illegal presence or the 3 and 10-year Bars.